Her Majesty the Queen - v. -, 2016 SKPC 123

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 123 Date: October 25, 2016 Information: 43793619 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erinn Maria Babich Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M.

GORDON , J Introduction [ 1 ] Erinn Maria Babich is charged as follows: On May 20, 2016 at or near Moose Jaw, Saskatchewan did without reasonable excuse, fail, or refuse to comply with a demand made to her by a peace officer pursuant to section 254(2) of the Criminal Code to provide a sample of her breath to enable analysis to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code On May 20, 2016 at or near Moose Jaw, Saskatchewan did while her ability to operate a motor vehicle was impaired by alcohol or a

drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily and the trial took place September 7, 2016 in Moose Jaw. [ 3 ] The defence served and filed a Charter notice alleging several breaches. [ 4 ] Counsel agreed that all evidence would be heard on the voir dire and all admissible evidence on the voir dire would apply to the trial proper. The defence did not call any evidence on the voir dire or during the trial proper. [ 5 ] The defence agreed that the only Charter issue being pursued was a breach of

Section 8. Evidence [ 6 ] Kelly Smith worked at the 7-11 on 13 th Avenue in Moose Jaw. On May 20 th a woman came to her till asking for cigarettes. Ms. Smith had to ask her a few times what brand of cigarettes which she thought was strange. She also noted a strong odour of alcohol coming from this woman. The woman had a little child with her and left the store and got into her vehicle and drove towards Grace Street. The woman put the child in a car seat in the back of the vehicle. This was about nine to ten in the evening. Ms. Smith could not identify this woman and Ms.

Smith called 911 as she was concerned that the woman was driving around with a child in the vehicle under the influence of alcohol. [ 7 ] Constable Clements was on regular duty May 20 th and received a dispatch relating that an employee of 7-11 had called saying there was a lady in the store who was intoxicated, had a small child and then she had got into a vehicle and driven away. The vehicle licence plate was provided and the SGI check showed it was registered in the name of Babich Farms and gave an address of an Erinn Babich.

As a result of this information Constable Clements drove to an address on Simcoe Street and drove by the residence looking for the vehicle which had been described to her. She was concerned that perhaps this person was out driving around with a young child in the vehicle. She pulled up in her unmarked police vehicle in front of the house and knocked on the door. She stood on the landing by the front door. Ms. Babich answered the door and identified herself. The officer noted she had glossy eyes her speech was slow and there was a smell of alcohol. Ms.

Babich said she had come from the 7-11 store and had a couple of drinks before driving but insisted she was not drunk. Constable Clements advised Ms. Babich that she had reasonable grounds to suspect Ms. Babich was operating a motor vehicle while impaired. The officer told Ms. Babich that she was investigating this complaint of drinking and driving and that she would be making an approved screening device demand and administering this test. This was at 9:39 p.m. The basis for the officer’s suspicion was information from Ms. Babich. There was a smell of alcohol coming from the woman.

The eyes were droopy and the speech was very slow and Ms. Babich’s admission of having a few beverages before driving to the 7-11 store. [ 8 ] Ms. Babich kept saying she knew her rights and wanted a lawyer and was concerned that the police officer was there at the direction of her ex-spouse. There was some discussion with respect to what to do with the child and Ms. Babich informed her there was a nanny present and so the officer followed Ms. Babich to the kitchen then upstairs looking for the nanny.

The officer read the approved screening device from her issued card while both were inside the residence. [ 9 ] Ms. Babich accompanied the police officer to the police vehicle and was requested to stand outside. Constable Clements retrieves an ASD device and readies it. The accused still refused despite being explained the consequences. Ms. Babich was arrested for impaired driving, handcuffed, read her rights and warnings, and placed in the back of the police vehicle. At this time Ms. Babich said she wanted to talk to a certain lawyer and that he was unavailable as he was in Hawaii.

She refused any other options. [ 10 ] Corporal Lewis was on scene as well and after some discussion Ms. Babich was released to appear in court at a later date. [ 11 ] On cross-examination Constable Clements acknowledged that the purpose of her going to the house was to locate the vehicle

and who was the driver. She was looking for a possible impaired driver. In other words she was investigating under the Criminal Code . She later agreed in cross-examination that she was going to the residence “searching for person and a vehicle”. The officer did not see a person or a vehicle when she gets to the residence on Simcoe. She did not know if a person or the vehicle was there and the only way to find out was to go to the door and request the person to open it and identify herself. This is in fact what the officer does when Ms. Babich comes to the door.

Constable Clements says she is investigating an impaired driving complaint and watching the person to get evidence. She admitted to engaging the accused in conversation to find out if the accused was the driver and to get evidence with respect to this investigation such as the accused’s speech and actions. The officer says these are critical pieces of information in an impaired driving investigation. Argument [ 12 ] Mr. Nidesh agreed that his application on behalf of Ms. Babich was under

Section 8 of the Charter of Rights and Freedoms . The officer filed the case of R v Stevens , 2011 OJ No 6059 as well as the case of R v Minielly , 2009 YJ No 3 Yukon Territorial Court. In addition Mr. Nidesh referred to the very recent case from the Saskatchewan Court of Appeal of R v Rogers , 2016 SKCA 105 . [ 13 ] Defence counsel referred to the Minielly case from the Yukon saying that once the officer formed reasonable and probable grounds to arrest Ms.

Babich for impaired driving making the ASD demand was unlawful. [ 14 ] The second argument of the defence was based on the Rogers case submitting that the within facts are very similar. The argument is that the police officer’s only purpose was to locate the vehicle and the person and therefore Constable Clements was engaged in a search under the Criminal Code to find the person and specific vehicle and to get evidence to support the grounds for impaired driving. [ 15 ] The observations that the officer makes from engaging Ms. Babich in conversation at the door are very similar as the Rogers case.

The officer engaged in a warrantless search that was without justification as it was with respect to a dwelling house. The officer should have obtained a warrant to enter the house. [ 16 ] The defence submits that pursuant to 24(2) of the Charter all evidence should be excluded from the time of the breach. Crown ’s Argument [ 17 ] The Crown indicated that certainly Rogers needs to be considered but refers in particular to paragraphs 28 and 29 for support.

The Crown also refers to the Gothiam case which was a Court of Appeal Case of some vintage where the officer was investigating as a result of an accident and was invited into the house. [ 18 ] The Crown also refers to the Vanwick case where the police go to the registered owner’s home who turns out to be the driver and he is arrested in his house. The Crown specifically points to paragraph 25 in Vanwick . [ 19 ] The Crown argues the police officer went to the house because there was a continuing offence and as a result it is different from the Rogers case.

Crown suggests that Constable Clements did not go to the house for the purpose of securing evidence for a crime but rather a concern with a continuing offence. Analysis

[20] Counsel agreed that the only issue is whether there was a breach of Ms. Babich’s Charter rights pursuant to

Section 8 of theCanadian Charter of Rights and Freedoms. [21]

Section 8 of the Charter reads as follows: Everyone has the right to be secure against unreasonable search or seizure. [22] The recent case of R v Rogers, 2016 SKCA 105 is of course binding on me and the facts are almost identical. In Rogers,Madam Justice Jackson speaking for the court states at paragraph one: [1] This appeal concerns the powers of the police to knock on the door of a residence for the purpose of securing evidence as to whetherthe occupant, who was recently seen driving a motor vehicle, is impaired. [3] Ms. Rogers was acquitted at trial of both counts.

The trial judge found that the officer had knocked on his apartment door for thepurpose of obtaining evidence against the occupant. The trial judge found that this constituted an unreasonable breach of s. 8 of theCharter (R v Rogers, 2012 SKPC 42 , 394 Sask R 302) [Voir dire Decision]). [1] When the trial resumed, the Crown made nosubmissions as to whether any of the evidence should be excluded under s. 24(2) of the Charter and the defence referred only briefly toR v Grant, 2009 SCC 32 [2009] 2 SCR 353 [Grant]. The trial judge excluded all of the evidence and entered not guilty verdicts. TheCrown appealed to the

summary conviction appeal court. [5] I have concluded for the reasons that follow that the appeal should be allowed and the decision of the Provincial Court restored. [23] The facts in Rogers are set out in paragraphs 6 through 10. When I say that the facts are almost identical I note paragraph 8which states as follows: [8] Constable Dechief went directly to this building and he entered what he recalled was an unlocked exterior door and approached thedoor of Mr. Roger’s apartment. When he knocked on the door, Mr. Rogers opened the door and, while the two remained on either sideof the door jam, Cst.

Dechief formed the opinion that Mr. Rogers was impaired. The officer described his speech as “very slurred”. [24] The police officer then decided that he had grounds to make an improved screening device on Mr. Rogers. On appeal to theCourt of Queen’s Bench Mr. Justice Chicoine relying on R v Vanwick, 104 OTC 161 at paragraph 33 (Superior Court SUP. CT), affirmed2002 OJ 3144 (QL) (CA) held that the investigative questioning by the police officer does not exceed the bounds of the implied right toapproach and knock and is not trespassing or in breach of

Section 8 of the Charter. The Crown in this case also relies on R v Vu, 1999BCCA 182 leave to appeal to SCC refused and R v Grothiem, 2001 SKCA 116 as well as the Vanwick case.

Considering these casesMadam Justice Jackson says in Rogers at paragraph 28 as follows: I agree with Crown counsel’s submissions, as stated in the above paragraph, but Crown counsel goes on to extract from the above casesthe principle that the police have an implied power to knock on someone’s door for the purpose of investigating a possible drinking anddriving offence, even if they do so with the intention of gathering evidence about the state of an occupant’s sobriety. In my view thecases do not go that far.

At paragraph 29 Madam Justice Jackson concludes: The investigation of the crime of drinking and driving, or a similar offence, necessarily entails the potential to obtain evidence fromconversing with or observing the person answering the door. Nonetheless, based on my review of the authorities, I have concluded thatif a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose of securing evidenceagainst the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter.

This principle applies equally todrinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory andolfactory clues about the person’s participation in the crime under investigation. Evans remains the leading authority on point, and

nothing in the jurisprudence extends the principles articulated by the majority in that decision as far as Crown counsel suggests. [31] For Sopinka J., the implied invitation to knock extends no further than is required to permit “convenient communication with theoccupant of the dwelling’ (at 18). [25] Madam Justice Jackson states that Evans is still good law and the leading case on

Section 8 challenges. She also reviews in paragraphs 30 to 34 various more recent authorities from the Supreme Court. [26] The cases are fact based. It is the officer’s purpose that is accepted by the court that is crucial. Is the purpose of the policeofficer to talk to the home owner about an accident for example or is the sole purpose to continue an investigation and obtain furtherevidence against the occupant? The police are clearly engaged in a search within

Section 8 of the Charter. With this distinction in mindit is clear that cases such as Grotheim and Vanwick and the like are distinguishable on the facts. At paragraph 53 of Rogers the court refers to the transcript of the questions and answers of Constable Dechief in both examination in-chief and cross. My notes indicate thatMr.

Nidesh put the same or almost the same questions to Constable Clements in the within case and received similar answers. [27] I rely on the following evidence which was not challenged: - The police officer received certain information from dispatch about a possible impaired driver - The officer attended at the address of the registered owner obtained via licence plate information. - The officer saw no person or vehicle in the area. - The officer knocked on the door, woman answered. - The police officer testified that she was investigating a possible Criminal Code offence and went to this residence searching for aperson and a vehicle. - The officer’s sole purpose was to obtain the identity of the driver and to obtain grounds to make an approved screening devicedemand. [28] The police officer testified that the information she received from the occupant was the identity of the occupant being theaccused, she could smell alcohol and she made observations of the accused.

The officer admitted the only way that she could obtaininformation for an approved screening device demand was in this fashion. Officer Clements testified in cross-examination that she toldthe occupant she was investigating an impaired driver complaint and that she was watching the person to get evidence, such as herspeech and actions.

These were critical pieces of information. [29] In Rogers the Court of Appeal upheld the trial judge’s conclusions that the police officer was attending to conduct a searchfor evidence following R v Evans, (SCC), 1996 SCJ 1, the police officer exceeded the authority conferred by theimplied licence to knock. The Court of Appeal affirmed in Rogers the trial judge’s decision that this search was found to beunreasonable and therefore a breach of

Section 8 of the Charter. A warrantless search is primefecia unreasonable and the Crown bearsthe onus of showing that it is reasonable. In R v Collins, (SCC), 1987 1 SCR 265, Chief Justice Lamer stated that awarrantless search is presumed to be unreasonable and the Crown must establish the search was reasonable on a balance ofprobabilities. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the searchwas carried out is reasonable. The Crown fails on all three requirements.

Applying Evans the search was not authorized by law as wellthe case of R v Feeney, (SCC), 1997 2 SCR 13 requires the police have a warrant and judicial authorization to enter adwelling house unless the police officer is in hot pursuit of an individual in attempting to make an arrest. [30] Finally Constable Clements and several police officers as it turns out were in front of the Babich home in this residential area. Ms. Babich was handcuffed outside her home on the street in full public view. Constable Clements had already walked around inside the house with the accused to keep contact with her and watch her.

There was a very young child present. I conclude ConstableClements had no lawful authority to conduct a search at the entrance to the house nor to enter the house without permission. [31] Neither counsel made any argument with respect to the appropriate remedy other than referring to a Grant analysis. A section24(2) analysis pursuant to R v Grant , 2009 SCC 32 requires the court to consider and balance the effect of admitting into the trial

process the unconstitutionally obtained evidence on the one hand against society’s confidence in the long term criminal justice system. The court must have regard to the following: i. The seriousness of the Charter infringing state conduct. ii. The impact of the breach on Charter protected interests of the accused. iii. Society’s interest in adjudication of the case on its merits. [32] When I consider the first line of inquiry I have to look to Constable Clement’s actions that night. I accept that ConstableClement’s felt this was acceptable police procedure.

Indeed the Rogers case is a very recent judgment of the Court of Appeal datedAugust 19, 2016 of the within incident. From the case law it is clear that the police and indeed often courts have upheld this type ofinvestigation. What I do find more serious with respect to the police actions that evening was the entering of the home without consentor invitation and following Ms. Babich around the home so she did not lose eye contact with her. In addition the arrival of other officerson scene and placing Ms.

Babich in handcuffs outside the police car and requesting that she go down to the police station initially, I findmore objectionable. Although I do not find the police officer behaviour egregious I do find the Charter breach is serious. [33] The second stage of analysis calls on the court to consider the extent to which the breach undermines the interest protected bythe Charter. Here I find the unreasonable search contrary to

Section 8. It affected the accused’s privacy, liberty, and human dignity. She was in her own home. She did not ask the police officer in and as I have said the police officer’s accompanying her around the homeand the actions outside of the home in full public view in a residential neighbourhood are serious. [34] Finally the third factor in Grant being the adjudication of the case on its merits has to be considered. Breath samples ofcourse constitute very reliable evidence with respect to this charge. The refusal to provide samples is also viewed as a serious offenceand carries the same penalty.

An individual should not be allowed or rewarded for frustrating the system and frustrating the detection ofimpaired drivers. Parliament and society at large have acknowledged the serious social impact of impaired drivers. On the other handagain I cannot over emphasize Ms. Babich was in her own home when the police officer came and entered the home for one specificpurpose only. There were other methods to obtain this information such as a search warrant.

Certainly the public has a strong interest inthe detection of impaired drivers but also I would suggest the public has equally or stronger interest in the right of citizens to be free frompolice interference in their own home without proper judicial authorization. Therefore balancing the three lines of inquiry in the Grantanalysis I do not condone such Charter breach when other avenues were available to the police. I find admitting the evidence wouldundermine the long term repute of the administration of justice. As such the evidence will be excluded.

Counsel at the outset said mydecision on the voir dire would be determinative of the final decision in this matter. [35] Therefore, I find Ms. Babich not guilty on count one. Impaired Driving [36] The Crown must prove the essential elements of this charge beyond a reasonable doubt. The leading cases R v Stellato, (SCC), [1994 2 SCR 478]. The case stands for the proposition that as long as the evidence of impairment establishes beyonda reasonable doubt any degree of impairment ranging from slight to great the offence has been made out. [37] There was no evidence of driving at all. Ms.

Babich walked to her vehicle carrying a small child put the child in a car seat inthe backseat and drove away. Ms. Smith, the 7-11 employee, went outside the store to obtain the licence plate. Ms. Smith gave noevidence with respect to the driving actions of Ms. Babich. Constable Clements received a call from dispatch about a possible impaireddriver and attended very quickly to the Simcoe Street address as she was the in the area.

There was no vehicle outside and when sheknocked on the door the occupant answered. [38] The Crown did not really argue the impaired driving charge and I find there was little if any evidence to support the charge.Therefore count two with respect to the impaired driving I find Ms. Babich not guilty as well.

________________ M. Gordon